John Macdonald's Opinion - Sarah Myhill and the GMC 2001-2007

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Dr Sarah Myhill and the General Medical Council

Opinion Mr John R Macdonald Queen’s Counsellor, New Square Chambers, Lincoln’s Inn London.

The problem

1. I am asked to advise Dr Sarah Myhill about her relations with the General Medical Council (“the GMC”).

2. Dr Myhill has been in private practice at Upper Weston, Llangunllo, Knighton, Powys as a physician since 2000. Before that she worked continually in NHS general practice, for eight years in Nottinghamshire and then for ten years from 1990 to 2000 in Wales. She specialises in treating chronic fatigue syndrome and has now seen over 5000 sufferers. Between June and December 2005 she also worked as a GP with a special interest for the Telford & Wrekin Primary Care Trust. She has been Honorary Secretary or Minutes Secretary of the British Society for Ecological Medicine (formerly the British Society for Allergy, Environmental and Nutritional Medicine) for 17 years. As such she was responsible for running bi-annual scientific meetings at the Royal College of General Practitioners, together with regular training sessions for doctors.

3. Between 2001 and 2007 Dr Myhill was the subject of a number of complaints to the GMC and faced a series of disciplinary hearings. In the event the complaints came to nothing. None of the hearings took place and the cases were cancelled. No disciplinary action has been taken against Dr Myhill.

4. All the complaints were made by doctors and not patients and fall into two batches, the first from 2001 to 2003 and the second from 2005 to 2007.

5. The complaints spread over 5 years have had a devastating effect on Dr Myhill and she is critical of the way the complaints were handled by the GMC.

6. Dr Myhill’s objective, however, in seeking my advice is to ensure that in the future she is free to practise medicine and attend to the needs of her patients without having to spend time and energy in combating unjustified complaints about her conduct.

7. I have reviewed the extensive correspondence relating to the second batch of complaints between the GMC and their solicitors Field Fisher Waterhouse LLP and Dr Myhill. I have also considered the various witnesses’ statements and reports which the GMC had obtained for fitness to practise hearings in relation to Dr Myhill which in fact never took place. I have also seen some of the documents relating to the first batch of complaints.

The GMC’s duties

8. Peter Swain, head of case presentation and fitness to practise directorate, in his letter to Dr Myhill dated 29 November 2007 explains that the GMC’s powers and responsibilities are defined by the Medical Act 1983 (as amended). He writes:

Under the Act, if the GMC receives an allegation that a doctor’s fitness to practise may be impaired, we are under a statutory duty (in other words a legal obligation) to investigate further. The process we have to follow when carrying out such investigations is set out in secondary legislation in the form of statutory procedure rules.

Case law in the High Court has established that the threshold for referral of an allegation of impaired fitness to practise to a Fitness to Practise Panel for hearing is relatively low. There needs to be a realistic - as opposed to remote or fanciful - prospect of proving the allegation.

9. Dr Myhill of course accepts that the GMC’s powers and responsibilities are laid down by statute, and she accepts that getting the balance of those powers and duties right is not always easy. Dame Janet Smith’s report into the case of Harold Shipman drew attention to the difficulties of the GMC being both prosecutor and judge. A further difficulty is that the GMC is concerned both to uphold the status of the profession and to respect the individual position of doctors. Accepting the difficulties which the GMC faces it remains its duty to conduct its investigations in a fair and proportionate way.

The principle complaints about Dr Myhill

The first batch of complaints

10. The Preliminary Proceedings Committee’s decision about the first batch of complaints is contained in a letter from Vanessa Carroll of the GMC to Dr Myhill dated 26 March 2003. The letter says that the Preliminary Proceedings Committee had resumed consideration of the allegations about Dr Myhill’s conduct described in our letter of 21 March 2002. I have not seen this letter. Vanessa Carroll then continues:

The Committee noted that most of the potential witnesses in the case had refused to assist the GMC and that you had now produced the drug register. It is noted further that there was no evidence to suggest that you had ever prescribed Ritalin. The Committee concluded that as there was insufficient evidence to support a charge of serious professional misconduct, the case should be cancelled.

It determined however, that you should be advised of the importance of following the guidance set out in the Council’s booklet, Good Medical Practice, a copy of which is enclosed, particularly in relation to keeping your patients’ General Practitioners informed of any treatment carried out by you.

11. On the Ritalin complaint Dr Myhill’s position has always been clear: she never has prescribed Ritalin for children. It is a mystery where this complaint came from. Dr K, on whose complaints the charges of professional misconduct were based, in a letter to Dr Myhill dated 22 May 2007says he never suggested that Dr Myhill prescribed Ritalin to children.

12. In response to a freedom of information Act request the GMC have produced a letter from Dr L, Dr K’s partner to the Medical Adviser of the D Health Authority in which he expresses concern about ‘the prescription of Ritalin to four of our patients whilst unfortunately there is no consultant psychiatrist available to offer ongoing follow up’. This concern does not appear to have anything to do with Dr Myhill.

13. Dr Myhill is concerned that GMC appears to have no idea where this unfounded allegation came from, and little interest in finding out on what it was based. This is an understandable concern.

14. It seems to be common ground that Dr Myhill produced her controlled drugs register to the GMC, even though she did not produce it to Mr R when he made an unannounced visit to her surgery in August 2001.

15. The remainder of the first batch of complaints concerned Dr Myhill’s treatment of patients with chronic fatigue syndrome. I have seen a draft undated report which was sent to Mills & Reeve and which I understand from Field Fisher Waterhouse’s letter dated 4 October 2007 was a report of Dr B

16. Dr B’s report considers the cases of patient X, patient M, patient D, patient M, patient S, patient H, patient S, patient L, patient T and patient H.

17. Stated shortly Dr B’s conclusions on the material with which he was provided (which may not include any input from Dr Myhill) were:

a) Patient X. It was appropriate for Dr Myhill to conduct a telephone consultation with this patient, it was inappropriate for Dr Myhill to prescribe for the patient before undertaking a physical examination and receiving the results of any investigations.
b.) Patient M. I find it very difficult difficult to find fault with her actions in relation to this case.
c.) Patient D. Her prescribing was inappropriate and she failed to communicate to the general practitioners both the drugs she had prescribed and the dosage regime.
d.) Patient M. The clinical records indicate that Dr Myhill referred this patient to Dr P privately without reference to the general practitioner.
e.) Patient S. Both Dr Myhill and Dr K seem to have referred this patient to an ENT specialist. There was a breakdown of communication.
f.) Patient H. Dr Myhill acted appropriately in this case.
g.) Patient S. There were occasions when patient S saw Dr Myhill, but Dr Myhill did not report this to the surgery. There seems to be some discontent between the GP practice and Dr Myhill over the management of patient S, but on Dr Myhill’s insistence she was admitted to hospital. Dr Myhill’s actions here were appropriate.
h.) Patient L. If Dr Myhill continued to see patient L she failed to communicate with the local practice beyond the first consultation.
i.) Patient T (Dr Myhill’s aunt). It seems that Dr Myhill failed to keep Dr C adequately informed both of the frequency and dose of vitamin B12 injections that her aunt was in receipt of.
j.) Patient H. There seems from the clinical records, evidence that the patient derived clear benefit from her contact with Dr Myhill and the relationship between Dr Myhill and Dr W was productive. I can find no fault with Dr Myhill’s communication with Dr W or Dr S. I have concerns about Dr Myhill’s diagnosis and management of what she terms fits.

18. The Preliminary Proceedings Committee, no doubt having considered Dr B’s report, decided that there was insufficient evidence to support a charge of serious professional misconduct.

The second batch of complaints

19. The allegations which Dr Myhill faced fall into three categories:

(i) Complaints from GPs (Dr C, Dr F, Dr M and Dr B) as to her treatment and involvement with their patients, particularly treating or recommending treatment with thyroxine.
(ii) Complaints she made misrepresentations on her application for employment made to the Telford and Wrekin Primary Care Trust. This complaint arose as a result of enquires which the GMC made of Telford following the complaints by Dr C and Dr F.
(iii) Concerns at the type of information and recommendations that Dr Myhill posts on her website

20. The third of these allegations has an interesting history. It originates in a letter from Dr S of the L NHS Board dated 19 December 2005 to the GMC. Dr S said he had received a request for an out of area referral to Dr Myhill but he had failed to find that she was registered and was concerned that her web site recommended treatment considerably outside her area of expertise as a GP. Dr Myhill then wrote to Dr S and gave him information which met his concerns. On 8 February 2006 Dr S wrote again to the GMC (Rachel Syed) that he did not after all think it was necessary for the GMC to have a formal investigation of his concerns.

21. On 19 June 2006 the GMC case examiners decided to conclude another complaint from Mr J about Dr Myhill’s website with advice. The reason for their decision was that it is not the place of the GMC to validate or otherwise comment on alternative medical treatments or make a statement on proper treatment for controversial disorders. The advice given to Dr Myhill was that she should use up to date well balanced material, avoid alarmist statements and avoid linking her views with unproven unlicenced medication which she or her associates sell on their website or by other means. The advice letter is signed by Rachel Syed.

22. On 1 August 2006, notwithstanding Dr S’s statement that it wasn’t necessary to formally investigate his concerns and the dismissal of Mr J’s complaint, Lauren Maitland, (a para legal with the GMC) instructed Dr Clarke to make an expert report on Dr Myhill’s website. Ms Maitland said she was investigating a referral from L NHS.

The GMC’s decision

23. On 9 October 2007 the GMC at the conclusion of an involved procedure informed Dr Myhill that a member of the Investigation Committee had considered cancellation of the referral of her case to a Fitness to Practise hearing under rule 28(2)(a) and (c) of the General Medical Council (Fitness to Practice) Rules 2004. The member had determined that the referral should be cancelled. The letter then sets out 38 reasons for his decision.

Dr Myhill’s concerns

Personal matters

24. Because of the complaints which have been made against Dr Myhill she had great difficulty in obtaining medical indemnity cover. When she was under investigation in 2001 to 2002 she was unable to obtain any professional medical cover. When she complained about this to the GMC, the response was that failure to get professional medical indemnity would result in her being accused by the GMC of serious professional misconduct and therefore she would be struck off the register. It was a catch 22 situation. It was only after considerable negotiation that she was permitted to continue in practice pending the outcome of the hearing. When the hearing was not proceeded with the insurance companies would not accept the letter explaining this as evidence of her innocence. As a result it took her a further four months to get cover. Since 2002 she has been unable to get medical indemnity cover for GMC hearings and for prescribing thyroid hormones.

25. Peter Swain in his letter dated 29 November 2007 says that the GMC are of course happy to explain to enquirers that there are no outstanding investigations into a doctor’s fitness to practice. I think the GMC should certainly provide this help to Dr Myhill, and should go further and make clear that there are no concerns about her prescribing thyroid hormones.

26. Dr Myhill has suffered unremitting stress over many years as a result of the unfounded allegations which have been made against her and have been investigated at such great length by the GMC. Those who have had unfounded allegations of professional misconduct made against them, know what a traumatic experience this is. In addition to this Dr Myhill has had to spend time and money in defending herself, she had no insurance cover for coping with the GMC allegations. As Dr Myhill has limits on her insurance cover she has had to keep her patients fully informed of her position. This has undoubtedly had an adverse effect on her practice.

27. The fact that the GMC makes no provision for compensation for doctors who suffer damage as a result of unfounded allegations, does not detract from the fact that Dr Myhill has suffered substantial damage as a result of the complaints which have been made. The GMC has not helped to contain or reduce this damage.

Procedural matters

28 Dr Myhill set out her concerns about procedural matters in a letter dated 1 October 2008 to Jackie Smith, the Head of Investigation at the GMC. They include (i) obtaining patients’ notes without obtaining the consent of the patients and without following their own procedure for doing this and without defining the public interest which justified this action; and (ii) failing to make sure that patients’ notes were complete. Dr Myhill says that she was accused of prescribing thyroid hormones without a good evidence base, but in one case the GPs themselves had their own thyroid function tests, which clearly showed that her diagnosis was correct, but these tests were not included with the patient’s notes.

Conclusions

Four complaints

29. Four of the complaints about Dr Myhill are clear cut and should have been thrown out: (i) there was no evidence that she prescribed Ritalin; (ii) she kept a proper drugs’ register; (iii) the question she was asked in her application for a job at the Telford and Wrekin Primary Health Trust was ambiguous. Her answer, on one construction was a perfectly proper one and she resolved any ambiguity in her position by making full disclosure at her interview of the complaints which had been made about her; (iv) the complaint about her web site made by Lothian National Health Trust had been withdrawn, the GMC dismissed another complaint about her website with advice of an unexceptional kind, but went on to commission a report on her web site which was not found to disclose sufficient evidence to justify a charge of impairment in her fitness to practise.

30. Doctors are entitled to expect that the GMC will investigate complaints against them in such a way that they quickly dismiss those which have no evidential basis, and make a clear statement to that effect.

31 In this case the GMC did drop the charge in respect of the answer to the question in Dr Myhill’s job application, but there was never any evidence which would have justified publishing a charge alleging lack of probity, in effect dishonesty. It should not have seen the light of day.

32. Tom Kark, the counsel who advised the GMC on 4 October 2007 says in paragraph 47 of his advice that ‘Dr Myhill’s good intentions are not seriously in doubt and it is known that she has very substantial patient support’. What was clear to Mr Kark should have been clear to the GMC. Anyone who has had had any dealings with Dr Myhill is not likely to doubt her good intentions. I find it very surprising that these four charges were persisted in for so long. If Dr Myhill had been interviewed at an early stage by a senior member of the GMC’s investigating team, and proper records had been kept, the overwhelming probability is that all four of these complaints would have been dismissed in short order. This in my opinion is what should have happened.

33. I think the papers I have seen show a worrying tendency on the part of some of those entrusted by the GMC in investigating complaints to see their task as to secure a conviction rather than to conduct a fair and proportionate inquiry. I note that this is one of the matters of concern reflected in the early day motion on the General Medical Council Complaints System, laid before the House of Commons on 10 June 2008.

Complaints about the treatment of patients with chronic fatigue syndrome.

34. Dr Myhill is not the only doctor who has been criticised for the use of thyroxine replacement therapy in non-biochemically hypothyroid patients. Similar issues arose in the case of Dr S. As a result of this Field Fisher Waterhouse asked Tom Kark to review the case against Dr Myhill in the light of the evidence given in the Skinner case. Mr Kark’s conclusion at para 14 was that it would be very difficult to establish that no reasonable body of medical practitioners would behave in the way that Dr Myhill did in relation to the suggestion of using thyroxine.

35. In the light of Counsel’s opinion the GMC then applied to cancel the reference to the Fitness to Practise Panel under the procedure laid down in rule 28 of the General Medical Council (Fitness to Practise) Rules 2004. The matter was then considered very carefully by an examiner who decided that the case should be brought to an end. In my opinion the way in which the case was brought to an end reflects credit on the lawyers who were involved.

36. What I find very worrying is that it was only the evidence given in the S case, which seems to have prompted a reconsideration in Dr Myhill’s case. This worries me because the nature of the treatment which Dr Myhill gives and her relationship with GPs involved had been the matter of careful consideration in the first batch of complaints which Dr Myhill had faced. On that occasion the Preliminary Proceedings Committee decided there was insufficient evidence to support a charge of serious professional misconduct. Why did the General Medical Council go through the whole performance again in 2005? The GMC has spent £136,692 12 on solicitors’ fees and disbursements in respect of their investigations into Dr Myhill’s conduct in addition to their own internal costs. That seems to me to be expenditure which is out of all proportion to the task in hand. I repeat that in my view an interview, or a series of interviews with Dr Myhill when the complaints were first made would have avoided this expenditure and achieved the same result, with much less aggravation. What is to stop the GMC repeating the process again if a complaint is made in 2010 about Dr Myhill’s use of thyroxine replacement therapy?

37. Dr Myhill’s experiences have left her angry and disillusioned She has tried hard to get her message through to the GMC, but her repeated letters have probably had a negative effect.

38. Dr Myhill is a respected clinician. Those who have worked closely with her speak highly of her. Dr M, who worked in a job share with Dr Myhill, writes she “was highly respected as a clinician by other doctors in the area including hospital consultants. She was, and undoubtedly still is an excellent diagnostician and was very thorough in sorting out patients medical problems. She was well liked and respected by patients and had an obvious commitment to good medical practice.”

Recommendation

39. In my opinion the concerns which Dr Myhill has are real and need to be addressed by the General Medical Council. I think the way forward is for Dr Myhill to have a meeting with a senior representative of the General Medical Council. I think such a meeting could clear the air, and show that lessons have been learned. I think Dr Myhill needs some reassurance that in future the GMC will talk to her at the earliest possible moment if any further allegations are made and that she will not have to go over old history. All she wants to do is to practise medicine.

38. I think the GMC should agree to such a meeting. I would be pleased to accompany Dr Myhill to it, if that is thought helpful.


John R Macdonald QC
New Square Chambers, Lincoln’s Inn
23 April 2009